Heyday of Autocratic Legalism in Slovakia

On 8 February 2024, Slovakia’s parliament approved an amendment to its criminal code and associated legislation that, if it comes into effect, will significantly reduce the prescription periods for various crimes including rape, the penalties for others, and abolish the Special Prosecutor’s Office. Despite a narrative claiming to commit to restorative justice by reducing lengths for prison sentences and implementing a more diverse set of conviction options, the legislative changes perpetuate violence through (autocratic) legalism on the vast majority of the Slovak population, and especially those vulnerable to abuses of power. This assault on the criminal legal system in Slovakia by the ruling illiberal coalition is expected to put the Constitutional Court under pressure.

‘Legal interpretation takes place in a field of pain and death’—these are the opening words of one of the few works of the prematurely deceased Yale-based legal thinker, Robert Cover. Cover’s work, as the broader scholarship on the interaction between law and violence, has not found much resonance in debates on Slovakia so far. But now, in a way, Cover has come to Bratislava via a major legislative amendment spearheaded by the illiberal coalition headed by PM Robert Fico early on after the 2023 elections, pertaining to the criminal justice system. This post briefly introduces three dimensions where the exertion of violence manifests: that of procedures, of institutions and of persons. It concludes by discussing the increased pressure on the Slovak Constitutional Court as a result of these amendments.

Violence of Procedures

Altering segments of the criminal justice system has been a desire of the dominant coalition party, headed by Robert Fico. While not listed in its brief pre-election manifesto, Fico has decried the increased prosecution for crimes of corruption and other offences linked to the workings of oligarchs in the Slovak public sphere, that were one of the few achievements of the otherwise divided and ineffective pandemic-struck government of 2020—2022. While these prosecutions matched public demand, fuelled by the murder of an investigative journalist and his fiancée, they were triggered by the increased independence of the police and the prosecution, and did not shield particular political actors from past wrongdoings.

Fico’s government manifesto (pp. 63–66) critiques the status quo of the criminal justice system and announces the intention of a reform ‘which will match European standards and current trends of crime policy of the most developed countries of the European Union’. Yet, amidst concerns for Slovakia’s economy and several of its vital sectors, the speed and determination of the coalition towards prioritizing this ‘reform’ has been surprising—at least for those who believed that at least one of the coalition parties, led by a frontrunner candidate in the presidential elections coming up in March 2024, will ‘temper’ Fico’s desires to crack down on the system that prosecutes many individuals personally close to him, and investigates his own past actions.

The ‘reform’ was carried through parliament in an accelerated legislative proceeding, which means significantly reduced time for expert intervention, including by specialized government bodies and public powers (such as the Judicial Council or the prosecution service).

With this violence exerted through stifling public (including parliamentary) debate, one could object that Cover is already a frequent visitor of Bratislava, as the overuse of accelerated legislative proceedings is a notorious ill in Slovak politics, even for constitutional amendments. Yet, this was the first time this was done for such a widespread set of changes, especially after a 2022 Constitutional Court decision which declared the unconstitutionality of shutting down parliamentary debate excessively via unjustified accelerated proceedings.

The gravity of this form of violence is well illustrated by the absence of academic debates on the proposed reform. In fact, the most visible push for debate (on the modifications in the prosecution service as part of the amendment package) came from law students, primarily at the Comenius University Law Faculty, the largest law school in the country. However, in addition to time constraints, the students faced an uphill battle with the Dean of the Law Faculty, who spread a conspiracy about the current special prosecution service containing a ‘criminal group’ but then refused to provide the venue for an expert discussion before the amendments are approved. The Law Faculty Dean was then elected by the Slovak parliament to serve as Head of the State Commission for Elections and Control of Political Party Financing, replacing a respected former Constitutional Court judge in this position. The students organized a debate lasting more than three hours at the Faculty of Arts of Comenius University, in which the Law Faculty Dean himself declined to participate.

Violence of Institutions

The government’s defence of accelerated proceedings was based on imminent human rights violations of those suffering from the partisan law enforcement. This, if to be taken seriously, amounts to an indictment of independent Slovak courts, the only institutions which may ultimately issue the conviction.

The Ministry of Justice (with a pivotal role in the administration of the justice system in Slovakia) and the Slovak Government Office did not hesitate to do this openly and (semi-)officially, by contracting the production of a 140-page brochure titled ‘An overview of violations of the principles of the rule of law’ that was published and promoted through government channels. The press release speaks of ‘revealing facts on the hijacking of justice’. However, the report is scarce on evidence, and is especially hostile towards scholarly works. Its 166 footnotes include mostly newspaper articles (from recognized as well as tabloid and conspiracy outlets), occasionally with selective references to Slovak Constitutional Court case law or international organizations.

That a publication presented as a source of expert-based evidence for the legislative changes would not pass the formal criteria for a student term paper at university is telling not only about the scholarly competences of the proponents of the changes (as past Slovak governments have failed to justify their decisions as well), but also about lack of care for the content as opposed to the symbolic expressions.

Such expressions perpetuate institutional violence because they show the disregard towards norms and conventions of public conduct. This manifestation of violence is underscored by the reforms of the criminal justice system being most vocally advocated by those MPs and government members (such as former President of the Police Force Tibor Gašpar or the Minister of Defence, Robert Kaliňák) who themselves face corruption charges and would directly benefit from the amendments, instead of less divisive coalition representatives.

Violence of Persons (by Some Persons, for Other Persons?)

The violence of procedures and institutions alone could generate a long-term collective trauma in Slovak society. It would not be an unprecedented one; in the late-1990s, the amnesties issued by the semi-authoritarian PM Vladimír Mečiar while exercising the functions of the head of state have triggered precisely that, and took almost two decades to (start) overcoming. The present process, already referred to by some commentators as Fico’s amnesties, may lead to a similar movement to abolish them despite the procedural differences (legislative change instead of the amnesty by the head of state).

Yet, both these dimensions fade, particularly from a constitutionalist point of view, compared to the individual harm that the amendments may impose on survivors of violent crimes. The reduction of the prescription period for rape and sexual abuse by half (from twenty to ten years) has particularly unearthed the governing parties’ attitudes to violence. If such amendments enter into effect, several ongoing prosecutions of sexual crimes will be halted immediately. Speculation remains whether this was a conscious choice or a result of the extremely superficial approach to amendments, whereby last-minute patchwork-type changes kept being introduced during parliamentary deliberations (though not on these particular segments of the proposed legislation). Regardless, the amendments to these provisions, without any systematic commitment to improving the broader investigative and reporting cultures of violent crimes, or of minority protection practice, make a mockery of the government manifesto with its self-proclaimed goal to spearhead a reform approximating the ‘most developed countries of the European Union’.

What Next: The Acceleration of Constitutional Time

The approval of the legislative changes by the parliamentary majority has turned the attention to the procedural specifics of the timing of the legislation. According to the currently dominant narrative, once the lowered prescriptive periods for prosecuting certain crimes enter into effect, even their potential subsequent declaration as unconstitutional by the Slovak Constitutional Court would not enable to continue ongoing proceedings or open new ones using the, for the accused, less advantageous regulation previously in place.

The head of state vouched to do everything in her power to prevent the changes with this presumed consequence from coming into effect. To do so, she may paradoxically, as Slovak constitutional lawyer Procházka pointed out, sign the amendments into law and send them immediately to the Constitutional Court for review. Her other option is to veto the amendments (which she can do in whole or in part, with somewhat divergent implications). The latter choice would reopen the parliamentary debate and in case of parliamentary override of the veto, may leave the Court with literally hours to consider the provisions before they come into effect.

Obviously, substantive review of such a major reform takes time, and would not be feasible to perform within hours or days either way. However, the Slovak Court has the competence to suspend the effectiveness of provisions before substantive review, when there is a risk of them triggering unconstitutional effects. This gives the Court time to review the legislation without it already inflicting potential harm, whilst it is also a form of signaling towards the legislative majority to consider amendments of their own in the meanwhile.

The Court can use this competence even within hours, as its expert staff can already keep amassing data and arguments in the expectation of a likely petition coming in at short notice, to support an informed and authoritative decision making of the judges despite the time pressure. For instance, it would not be convincing to argue that, because the Court’s plenum (which decides these types of cases) typically sits on Wednesdays, if a petition arrives only on a Thursday, it cannot be processed before the next Wednesday sitting. There is no hard-coded prohibition of the plenum to deliberate on a different day, if a particularly urgent issue arises.

That a constitutional court in a democracy ought not be put under such partisan-induced time pressure by the coalition’s disrespect vis-à-vis reasoned deliberation is undeniable. Still, even if the Slovak Court gets only hours to act, but does not do so, it will bear co-responsibility for the ban on continuation of the proceedings with many accused suspects of criminal acts. This is underlined by the Court’s extensive formal powers from a cross-jurisdictional point of view. Against the Court’s rapid action speaks its prevailing reluctance to embrace more principled (one could say, Dworkinian) arguments. But with all the violence inflicted upon procedures, institutions and persons by the amendments, such arguments might not be needed in this case, at least for the step of ‘buying more time’ during the suspension of effectiveness stage.

Ultimately, through the violence of procedures, Cover’s visit to Košice (the seat of the Constitutional Court) seems inevitable. But if the Court does nothing against this violence of institutions and persons, Cover’s extended stay might necessitate inviting Radbruch to be the next visitor. And waiting for the latter to come might take just too long.

This post was prepared during the author’s research stay at the Central European University, Department of Legal Studies, supported by the Action Austria-Slovakia scholarship.